From Steward Update: Volume Twenty-Seven, Number 2
When members are experiencing family or medical issues and need time away from work, stewards are well-positioned to provide support and guidance during what can be a stressful time. By understanding family and medical leave laws, you can ensure that your co-workers both comply with rules for requesting leave and take full advantage of their rights and benefits. Here’s a brief guide to help members navigate these laws.
Does the Member Qualify for Leave?
Under the U.S. Family and Medical Leave Act (FMLA), eligible employees may take up to 12 workweeks of unpaid leave during any 12 month period for one or more of the following reasons:
- The birth of a son or daughter;
- The placement of a son or daughter with the employee for adoption or foster care;
- To care for a spouse, son, daughter or parent of the employee suffering from a “serious health condition”;
- The employee is suffering from a “serious health condition” that makes him/her unable to perform their job;
- The employee’s spouse, son, daughter or parent is on active duty in the armed forces.
Canadian family and medical leave laws vary by province and are typically more generous than the U.S. law, providing in some cases up to 15 weeks paid, job-protected medical leave and up to 52 weeks of unpaid parental leave.
Notice and Medical Certification Requirements
Of all the members’ burdens that may be eased by a steward’s guidance, assistance with the notice and certification requirements may be the most welcomed. Under the FMLA, where the need for leave is foreseeable, employees must give the employer thirty days’ notice. Otherwise, the employee is required to give the most notice possible.
An employer may require that a request for leave be supported by medical documentation, which should include the expected duration of the medical condition and a statement that either the employee cannot perform his or her job or is needed to provide family care.
Member Benefits While on Leave
The law is clear that an employer must maintain coverage under any health plan for an employee on FMLA leave. As to other employment benefits, such as seniority and paid time off, members should be advised that unless your collective bargaining agreement provides otherwise, the employer is not required to continue accruals during an FMLA leave.
Understand Employer Rules on Concurrent Leave
Let’s assume that a member has accrued three weeks of vacation, one week sick time and three days personal time off, all of which are paid. Suddenly the member’s mother is diagnosed with a “serious health condition” as defined by the FMLA. The member submits a request for 12 weeks leave, which is approved.
While the member is willing to use her paid sick and personal time while on FMLA, she does not want to use her three weeks of vacation time because she has already booked non-refundable travel for later that year. Can the employer force her to exhaust the three weeks of vacation while on FMLA, even though she would rather have unpaid time off?
Unfortunately, yes. While the employer must allow a member to use accrued paid time off while on FMLA if he or she so chooses, the FMLA also makes clear that an employer may establish a rule requiring that employees exhaust all accrued paid time off while on leave. However, employers generally may not implement a new rule requiring that employees exhaust all accrued paid leave without first bargaining with the union. Stewards—as the eyes and ears of the union—should be on the lookout for this and keep the union informed of any unilateral changes the employer makes to its FMLA policies.
Returning to Work
So what happens when the member is prepared to return to work? The FMLA is intended to provide leave that is “job protected,” meaning that members may take time off without worrying whether a position will be available when they are ready to return. Ideally, when a member is prepared to return from leave, they will be reinstated to their former position. If that’s not possible, the employer must restore the employee to an “equivalent position,” with virtually identical pay, benefits, working conditions and privileges. Since defining what an “equivalent position” is can be difficult, members are likely to need the steward’s help to make sure the employer lives up to that obligation. A Floor, Not a Ceiling When dealing with family or medical leave issues, remember: The contract is king. The FMLA provides the minimum leave that must be granted to employees. If your collective bargaining agreement provides better benefits than the law, the employer must abide by the contract. The FMLA also encourages employers to adopt more generous leave policies beyond what the law provides. Stewards should relay member concerns regarding family and medical leave to the union, which better enables the union to try to negotiate more generous benefits including paid leave, extended leave, “family leave banks” and less restrictive rules on exhausting accrued leave.
—Nolan J. Lafler, Esq. The writer is an associate attorney at Blitman & King LLP in Rochester, New York, where he represents public and private sector labor organizations